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State v. National Railroad Passenger Corp.

February 23, 2007


The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge


After more than three years of litigation, pretrial litigation in this case is in its final stages and the parties are preparing for a final disposition of the issues. What remains in terms of discovery is expert disclosure and the resolution of third-party subpoenas. Defendant Amtrak now asks this Court to recuse itself in deciding issues pertaining to the third-party subpoenas seeking depositions of Alan Hevesi, former Comptroller for the State of New York, Thomas Sanzillo, First Deputy Comptroller for the Office of the State Comptroller ("OSC"), and Joan Sullivan, Assistant Comptroller. Amtrak's Motion to Recuse was filed simultaneously with OSC's Motion to Quash Amtrak's Subpoenas. Dkt. No. 52, Def.'s Mot. to Recuse, dated Jan. 10, 2007; Dkt. No. 50, OSC's Mot. to Quash Subpoena, dated Jan. 10, 2007. This Order addresses solely the Motion to Recuse. On January 23, 2007, third-party OSC filed a Memorandum of Law in opposition to Amtrak's Recusal Motion, and in turn, Amtrak filed a Reply Memorandum of Law. Dkt. No. 59, OSC.'s Opp. to Mot., dated Jan. 23, 2007; Dkt. No. 70, Def.'s Reply Mem. of Law. In reviewing the basis for Amtrak's Motion to Recuse, we deny such Motion simply because no reasonable person knowing all of the facts would conclude that this Judge's impartiality could be reasonably questioned in rendering a decision and order on the Motion to Quash. Moreover, the Court will clarify the record to dispel that any preconceived, prejudicial notions of law or fact played any role in any previous rulings, or would even surface in deciding the Motion to Quash, or that Amtrak's grandiloquent ruminations of this Court's partiality toward OSC have any foundation whatsoever.*fn1


The facts and procedural history of this action are well known to the parties, but to the extent further familiarity is required, those facts are fully stated in the Court's January 9, 2006 Order, which denied Amtrak's Application to Compel Disclosure of OSC's Records by a Rule 34 Demand for Production. Dkt. No 29, Order, dated Jan. 9, 2006; also reported as New York ex. rel. Boardman v. National R.R. Passenger Corp., 233 F.R.D. 259 (N.D.N.Y. 2006). Because Amtrak's recitation of the facts in support of its Motion is riddled with inaccuracies and unfounded innuendoes, in order to lay bare the actual facts and law encompassing the January 9, 2006 Order, a reiteration of the record is warranted. In re Drexel Brunham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1998) (cited in United States v. Muyet, 994 F. Supp. 550, 554 (S.D.N.Y. Mar. 4, 1998) ("[I]n reviewing a recusal motion, a court must proceed by 'examining the record facts and the law, and then deciding whether a reasonable person knowing and understanding all the relevant facts would recuse the judge.'")).

A. The Law

Amtrak's Motion to Recuse is purportedly premised upon both 28 U.S.C. § 455(a) and (b)(1). Succinctly, those two subsections read in tandem state "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned [and] [h]e shall also disqualify himself in the following circumstance [w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]" Id.

In cases where a judge's impartiality might reasonably be questioned, the issue for consideration is not whether the judge is in fact subjectively impartial, but whether the objective facts suggest impartiality. See Liteky v. United States, 510 U.S. 540, 548 (1994). The ultimate inquiry is whether "a reasonable person, knowing all the facts, [would] conclude that the trial judge's impartiality could reasonably be questioned." Hughes v. City of Albany, 33 F. Supp. 2d 152, 153 (N.D.N.Y.) (Kahn, J.), aff'd, 189 F.3d 461 (2d Cir. 1999) (quoting United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992)). The Second Circuit, as well as the statute's legislative history, instruct that this compulsory inquiry should be utilized as "an objective standard designed to promote public confidence in the impartiality of the judicial process." United States v. Lovaglia, 954 F.2d at 814 (citing H.R. Rep. No. 1453, 93d Cong. 2d Sess., reprinted in 1974 U.S.C.C.A.N. 6351, 6355). Stated another way, the inquiry is "would an objective disinterested observer fully informed of the underlying facts, entertain significant doubt that justice would be done absent recusal." Id. at 815 (citing Deluca v. Long Island Lighting Co., Inc, 862 F.2d 427, 428-29 (2d Cir. 1988)) (emphasis added). There must be an objective basis beyond mere claims of partiality being promoted, promulgated in motions, or publicized elsewhere. In re Aguinda, 241 F.3d 194, 201 (2d Cir. 2001); see also Ocasio v. Fashion Inst. of Tech., 9 Fed. Appx. 66, 68 (2d Cir. 2001) (unpublished opinion). Such recusal must go beyond the pale call for such action and must "display a deep-seated favoritism or antagonism that would make fair judgment impossible" or may be significantly derived from or a reliance upon an extra-judicial source. Liteky v. United States, 510 U.S. at 555; LoCascio v. United States, 473 F.3d 493, 496 (2d Cir. 2007) (resolving that the standard is not guided by "what a straw poll of the only partly informed man-in-the street would show" but rather a reasonable person knowing and understanding all of the relevant facts); United States v. Toohey, 448 F.3d 542, 546 (2d Cir. 2006) (reassignment is mandated where unambiguous bias and its improper influence exists).

In granting or denying a recusal motion, the Second Circuit has confided primary discretion with broad latitude to the trial court in reviewing such applications, subject only to the appellate court's review standard review of abuse of discretion. United States v. Muyet, 994 F. Supp. at 554 (citing Apple v. Jewish Hosp. and Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1993) & United States v. Lovaglia, 954 F.2d at 815). Moreover,

[t]he judge presiding over a case is in the best position to appreciate the implications of those matters alleged in a recusal motion. In deciding whether to recuse himself, the trial judge must carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his presiding over their case. Litigants are entitled to an unbiased judge, not to a judge of their choosing.

In re Drexel Burnham Lambert Inc., 861 F.2d at 1312; United States v. Lovaglia, 954 F.2d at 815 (noting that recusal motions are committed to the sound discretion of the trial court).

To be clear, a judge should not refer a recusal motion to another judge but rather should exercise its "affirmative duty to inquire into the legal sufficiency" of said motion and determine if there is a factual basis to support the charge of a "bent of mind that may prevent or impede impartiality of judgment." LoCascio v. United States, 473 F.3d at 498 (quoting, inter alia, Wolfson v. Palmieri, 396 F.2d 121, 124 (2d Cir. 1968)). Inasmuch as recusal applications are frequently employed, both the United States Supreme Court and the Second Circuit, evincing broad tenets as opposed to bright line rules, have provided illumination and illustrations to guide the trial court in weighing all of these factors.

For example, if a judge expresses "a personal bias concerning the outcome of the case at issue," "has a direct personal or fiduciary interest in the outcome," or "has had contemporaneous extra-judicial contact with a party or close relative of a party who has personal knowledge of outcome-determinative facts," recusal is warranted. United States v. Lovaglia, 954 F.2d at 815 (citations omitted). Conversely, if that interest is "remote, contingent, indirect, [or] speculative," disqualification is not required. Id. (citing In re Drexel Burnham Lambert Inc., 867 F.2d at 1313). Or, "[a] judge's prior representation of one of the parties in a proceeding . . . does not automatically warrant disqualification." Id. (citing Nat'l Auto Brokers Corp. v. Gen. Motors Corp., 572 F.2d 953 (2d Cir.), cert. denied, 439 U.S. 1072 (1979)). Furthermore, a trial judge is not obligated to disqualify himself if some part of the relevant events of a case may have occurred while the judge served in an official capacity relatively related to those facts but departed from that office before an investigation of the facts ensued. United States v. Thompson, 76 F.3d 442, 451 (2d Cir. 1996). Courts, much as Congress has promulgated, should default to a "personal-participation rule" for prior governmental employment and "draw the recusal line for prior government employment at participation in the proceeding or expression of an opinion concerning the merits of the particular case in controversy." Baker & Hostetler LLP v. United States Dep't of Comm., 471 F.3d 1355, 1358 (D.C. Cir. 2006); see also 28 U.S.C. § 455(b)(3). With respect to a claim of personal bias or prejudice, the Supreme Court has held that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion," unless they reveal such a high degree of "favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. at 555 (citations omitted).*fn2 Moreover, it is well established that it is presumptively not improper for a court to preside over successive matters involving the same parties. Id. at 551.*fn3

The Supreme Court further recognized that extra-judicial sources, which are "pejoratively" biased or prejudicial, are applicable to § 455(a). One would not disagree with the acknowledgment but that does not necessarily conclude that all extra-judicial sources are deprecatory or pejoratively biased or constitute a basis for recusal. In making this point clear, and eschewing a bright line rule, the Supreme Court in addressing the expanse of the extra-judicial source doctrine stated that [a]s we have described it, however, there is not much doctrine to the doctrine. The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for "bias or prejudice" recusal, since predispositions developed during the course of a trial will sometimes (albeit rarely) suffice. Nor is it a sufficient condition for "bias or prejudice" recusal, since some opinions acquired outside the context of judicial proceedings (for example, the judge's view of the law acquired in scholarly reading) will not suffice. Since neither the presence of an extra-judicial source necessarily establishes bias, nor the absence of an extra-judicial source necessarily precludes bias, it would be better to speak of the existence of a significant (and often determinative) "extra-judicial source" factor, than of an "extra-judicial source" doctrine, in recusal jurisprudence.

Liteky v. United States, 510 U.S. at 554-55 (quotations and emphasis in original); In re Int'l Bus. Mach. Corp., 45 F.3d 641, 644 (2d Cir. 1995) (noting extra-judicial source as a significant factor rather than a significant doctrine).

However, the most salient advice propagated by the appellate courts is for the trial court to review warily such motions of recusal. United States v. Lovaglia, 954 F.2d at 815 ("[J]udges must be alert to avoid the possibility that those who would question [their] impartiality are in fact seeking to avoid the consequence of [the judge's] expected adverse decision.") (quotation and alteration in original). "A judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is" since, which deserves repeating, "litigants are entitled to an unbiased judge, not to a judge of their choosing." In re Aguinda, 241 F.3d at 201 (quoting In re Drexel Burnham Lambert Inc., 861 F.2d at 1312 & 1321).

Lastly, a recusal motion must be brought at the earliest possible moment after obtaining knowledge of facts that may demonstrate the basis of the claim. Omega Eng'r Inc. v. Omega, S.A., 432 F.3d 437, 448 (2d Cir. 2005) (citations omitted). There are two primary reasons for this rule:

First, a prompt application affords the judge an opportunity to assess the merits of the application before taking any further steps that may be inappropriate for the judge to take. Second, a prompt application avoids the risk that a party is holding back a recusal application as a fall-back position in the event of adverse rulings on pending matters.

LoCascio v. United States, 473 F.3d at 497 (citations omitted) (emphasis in original).

B. Amtrak's Contentions

Amtrak asserts that this Magistrate Judge should recuse himself from adjudicating OSC's Motion to Quash Subpoenas served upon high ranking officials in the Comptroller's Office. Presumably, the springboard for Amtrak's Motion is this Court's January 9, 2006 Order denying its Motion to compel Plaintiff to produce all responsive documents in the possession of the State of New York, particularly those owning to OSC. Dkt. No. 29, Order, dated Jan. 9, 2006. Amtrak notes that prior to this Order, during a telephone conference held on December 16, 2005, when the Court was establishing a briefing schedule on whether such documents would be disclosed through discovery procedure, this Judge sua sponte suggested that responsive documents in the possession of OSC may be protected by deliberative process privilege and requested that this issue be briefed as well as the other underlying issues. Dkt. No. 52-2, Def.'s Mem. of Law at p. 4. In conjunction or concert with that sua sponte suggestion, this Court, by the January 9th Order, found that OSC was an independent agency to Department of Transportation ("DOT") and was not subject to discovery except by subpoena. Dkt. No. 29 at pp. 7-16. Believing, in part or maybe totally, that the merits for the Ruling was based upon this Court's prior experience as General Counsel to OSC, Amtrak appealed the Memorandum-Decision and Order. Dkt. No. 52-2 at p. 5; see also Dkt. No. 30, Def.'s Appeal, dated Jan. 26, 2006. Within that appeal, Amtrak raised the objection that this Magistrate Judge erred by pre-judging OSC's potential claim of deliberative process privilege based upon "his own personal experience," and requested "at a minimum, the [District] Court should vacate the Magistrate Judge's ruling . . . and further consider whether Magistrate Judge should be required to recuse himself." Dkt. No. 30, Point II at pp. 20-25 (emphasis added). In concluding, Amtrak asked the reviewing court to "vacate [the Order] in its entirety as contrary to law and issued in violation of 28 U.S.C. § 455(a) and (b)." Id. at p. 25. Said demands for specific relief were denied in their entirety. Dkt. No. 35, Order, dated Apr. 4, 2006.

Now, nearly nine months after the District Court's ruling, iterating verbatim the posture it took during its Appeal to the District Court, Amtrak claims that this Court has already predetermined or decided the disputed issued whether the documents they seek are "pre-decisional," which, if true, may be protected by the deliberative process privilege. Dkt. No. 52-2 at p. 7. In fact, Amtrak found this Court to have made an "unconscious . . . without even realizing" decision concerning a disputed issue. Dkt. No. 52-2 at p. 8; Dkt. No. 30 at p. 24 (emphasis added). Amtrak continued its remonstrations by maintaining that "[t]he fact that the Magistrate Judge made these 'rulings,' apparently without even realizing it, strongly suggests that the Magistrate Judge's own personal experience as General Counsel to the OSC colored his decision-making and led him to prejudge an issue that now comes before the Court on its merits in a slightly different and vastly more important context." Dkt. No. 52-2 at p. 8. Not being satisfied with just claiming that this Court acted unconsciously, Amtrak contends that the Court "acted as ...

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